overview of immigration consequences of state court criminal ...

DRAFTQQKnown or reasonably believed to have engaged intrafficking in a controlled substance.QQComing to the U.S. to engage in prostitution or havingengaged in prostitution in the 10 years prior to applicationfor admission, with exception that one act of solicitingprostitution for oneself does not preclude admissibility.QQKnown or reasonably believed to have engaged intrafficking in persons.QQKnown or reasonably believed to have engaged in moneylaundering.QQKnown or reasonably believed to have engaged in or cometo the U.S. to engage in terrorist activity.QQKnown or reasonably believed to have engaged in orcome to the U.S. to engage in various acts of espionage,treason, or sedition.QQIllegal voting.Note: Conviction of an aggravated felony is not automaticgrounds for inadmissibility.There is a petty offense exception for crime involving moralturpitude.QQOne conviction of a crime involving moral turpitude witha maximum sentence of one year or less and actualsentence of six months or less does not make an alieninadmissible.QQThe court looks to actual sentence imposed, not thepossible sentence.QQIf the imposition of the sentence is suspended, thesentence is not “imposed”, but if the execution of thesentence is suspended, the sentence is considered“imposed”.WHAT IS A CONVICTION?For the purposes of Federal immigration law, the term “conviction”means one of the following, arising from a criminal proceedingwith appropriate constitutional protections and required proofbeyond a reasonable doubt:QQA formal judgment of guilt of the alien entered by a court, orQQIf adjudication of guilt has been withheld, where (1) a judgeor jury has found the alien guilty or the alien has entered aplea of guilty or nolo contendere or admitted sufficient factsto warrant a finding of guilt, and (2) the judge has orderedsome form of punishment, penalty, or restraint on thealien’s liberty to be imposed.The following are examples of convictions.QQExpungement does not erase the conviction forimmigration purposes.QQA presidential or gubernatorial pardon can eliminatedeportability for conviction of a crime involving moralturpitude or aggravated felony.QQDeferred prosecution if there is an admission of factssupporting a finding of guilt and some form of punishmentor restraint on liberty is imposed by the judge.QQDeferred adjudication if the defendant enters a plea ofguilty or nolo contendere or admits facts sufficient tosupport a finding of guilt, and some form of punishment orrestraint on liberty is imposed by the judge (this is commonfor drug courts).QQA suspended sentence.QQA conviction vacated solely to alleviate immigrationconsequences. (A conviction vacated for legal insufficiencyis not a conviction for immigration purposes.)A juvenile delinquency determination is not considered an adultcriminal conviction.AGGRAVATED FELONYConviction of an aggravated felony includes conviction ofthe crime itself, conviction of attempt to commit the crime, orconviction of conspiracy to commit the crime. The followingcrimes are specifically identified as aggravated felonies byFederal immigration law:QQMurder;QQRape;QQSexual abuse of a minor, including indecent exposure to achild and statutory rape. It can include offenses classifiedas misdemeanors under state law;QQCrime of violence, as defined in Federal law, with asentence of one year or more;QQTheft or burglary with a sentence of one year or more;QQDrug trafficking;QQSale, possession for sale, or manufacture of a controlledsubstance;QQTrafficking in firearms;QQTrafficking in persons;QQDealing in stolen explosive materials;QQDemand for or receipt of ransom;

DRAFTQQOwning, managing, or supervising a prostitution business;QQSexual exploitation of children;QQRacketeering, as defined in Federal law;QQMoney laundering if the amount exceeds $10,000;QQTax fraud in excess of $10,000;QQFraud with loss to victim exceeding $10,000;QQForgery of an immigration document with a sentence ofone year or more;QQCrimes compromising national security or intelligence;QQFailure to appear for service of sentence where theunderlying offense is punishable by imprisonment for 5years or more;QQCommercial bribery, counterfeiting, or forgery, includingtrafficking in vehicles with an altered Vehicle IdentificationNumber, with a sentence of one year or more;QQObstruction of justice or perjury; andQQFailure to appear to answer a felony charge with a possiblesentence of two years or more.The following have been found to be crimes of violence.QQStalking when under a temporary restraining order.QQUnauthorized use of a motor vehicle in that it involves asubstantial risk of the use of force.QQManslaughter in the first degree that requires intent tocause death or serious harm.Misdemeanors as Aggravated FeloniesExamples of misdemeanors that could be aggravated feloniesas crimes of violence if the actual sentence is 1 year or moreQQOffensive touching.QQReckless endangerment.QQAssault.QQUnlawful imprisonment.QQMenacing or threatening.QQCoercion.QQTheft.The immigration court must take the crime as charged andconvicted in the state court, even if the prosecutor’s chargewas initially fashioned or later modified, even retroactively, tominimize immigration consequences.Where the length of sentence is a part of the definition of anaggravated felony, the sentence as modified by the trial courtnunc pro tunc is the effective sentence for immigration purposeswithout regard to the trial court’s reasons for the modification,even if the sentence was modified solely to mitigate immigrationconsequences for the defendant.Crime of ViolenceFederal criminal law defines a crime of violence as:1. An offense that involves the use, attempted use, orthreatened use of physical force against the person orproperty of another, or2. Any other offense that is a felony and that, by its nature,involves a substantial risk that physical force against theperson or property of another may be used in the courseof committing the offense.CRIME INVOLVING MORAL TURPITUDEThe term “crime involving moral turpitude” is not defined in theFederal immigration statutes. As a result, the following discussionis based entirely on case law from Board of Immigration Appealsdecisions.Definition from case lawQQA crime involving moral turpitude is one that shocksthe public conscience as being inherently base, vile, ordepraved, contrary to the rules of morality and the dutiesowed between persons, either to individuals or society ingeneral.QQThe crime must involve evil or malicious intent or inherentdepravity.QQThe statute and not the actual behavior controls: theaspect of moral turpitude must be a necessary elementof the crime as defined by state statute. If a person couldbe convicted of the crime, as defined by statute, withoutan aspect of moral turpitude, it is not a crime of moralturpitude.For more information, please contact Steve Weller: sweller@indra.com

DRAFTWhere the crime as defined by statute includes both crimes thatqualify as moral turpitude and crimes that do not, the recordof conviction, including indictment, plea, verdict, and sentence,may be considered.QQNeither the seriousness of the crime nor the severity of thesentence is determinative of whether a crime is a crime ofmoral turpitude.Types of crimes that have been found by the courts to involvemoral turpitude include the following.QQCrime involving specific intent to cause physical injury orreckless behavior causing serious bodily injury. Knowinggross deviation from reasonable standard of careconstitutes reckless behavior.QQCrimes involving an intent to defraud, such as theft, fraud,or perjury.QQProstitution.QQPossession of child pornography.QQMoney laundering.QQConcealing a Federal felony committed by another, wherethere was active intent to conceal the crime.QQTrafficking in counterfeit goods.QQWillful failure to register as a sex offender.The following are rules regarding DUI cases, as determined byBoard of Immigration Appeals decisions.QQSimple DUI is not a crime involving moral turpitude.QQA conviction of DUI coupled with knowingly driving whilelicense suspended or revoked due to a prior DUI convictionis a crime involving moral turpitude.QQMultiple convictions of simple DUI, where none of theconvictions alone constitutes a crime involving moralturpitude, are not considered a crime involving moralturpitude.Crimes that have been found not to involve moral turpitudeinclude the following.QQUnauthorized use of a motor vehicle.QQJoyriding.QQSimple assault without intent to cause serious bodily harm.QQDomestic assault is not a crime involving moral turpitude ifcommitted without intent to cause serious bodily harm, or ifdefined by state law to include just unwanted or offensivetouching.Misdemeanors as Crimes Involving Moral TurpitudeExamples of misdemeanors that could be crimes involvingmoral turpitude if the possible sentence is one year or more, orif a person commits two of them.QQTheft.QQFraud.QQPerjury.QQProstitution.CRIME OF DOMESTIC VIOLENCEConviction of a crime of domestic violence is grounds fordeportation. The following are categories of crimes of domesticviolence that can affect immigration status.QQStalking.QQDomestic violence.OOMust qualify as a crime of violence under Federalcriminal law.OOMust be committed by an individual against a personwho is protected from that individual’s acts under thedomestic or family violence laws of the United Statesor any State, Indian tribal government, or unit of localgovernment.QQCriminal child abuse, neglect or abandonment.OOThe statute does not include civil child abuse andneglect.QQViolation of domestic violence protective order.Domestic violence can also be an aggravated felony if itmeets the requirements of an aggravated felony with an actualsentence of one year or more.